Excerpt:civil procedure code (act xiv of 1882), sections 244, 316 566 and 568 - defence not barred even though not taken in former execution proceedings--remand--determination of question of fact. - .....told that defendant no. 4 did not traverse that allegation and did not allege that as a matter of fact the sale had never taken place, or that if it had taken place it was invalid. on the, case coming up for trial the 4th defendant pleaded, as we understand that the land was her own, and did not descend to her from abbas ali, and was not liable to be taken in execution for the debts of abbas ali. the munsif found that this land did belong to the 4th defendant and did not descend to her from abbas ali. he found, however, that defendant no. 4 never impeached the execution proceedings and did not suggest that she was not aware of these proceedings. he held, therefore, that she was not entitled to question the validity of the sale, or to dispute the plaintiff's rights as acquired by that.....

Judgment:

1. In this case it appears that one Abbas Ali owed the plaintiff certain money. He died without discharging the debt and after his death the plaintiff brought a suit against his heirs among whom was the defendant No. 4, and obtained a decree against them. In execution of that decree he put up the property now in dispute to sale, and purchased it himself. He obtained the sale certificate and formal possession but after obtaining formal possession he was again dispossessed. Thereupon he brought the present suit for recovery of possession.

2. A good deal of the argument in this case has been directed to the pleadings in the suit, and it is a matter of regret that the appellant has not thought fit to have these translated and laid before us. So far as we can gather the plaintiff alleged that in execution of the decree against defendant No. 4 and others, he had purchased this land which was in their possession. We are told that defendant No. 4 did not traverse that allegation and did not allege that as a matter of fact the sale had never taken place, or that if it had taken place it was invalid. On the, case coming up for trial the 4th defendant pleaded, as we understand that the land was her own, and did not descend to her from Abbas Ali, and was not liable to be taken in execution for the debts of Abbas Ali. The Munsif found that this land did belong to the 4th defendant and did not descend to her from Abbas Ali. He found, however, that defendant No. 4 never impeached the execution proceedings and did not suggest that she was not aware of these proceedings. He held, therefore, that she was not entitled to question the validity of the sale, or to dispute the plaintiff's rights as acquired by that sale. The 4th defendant then appealed to the Subordinate Judge and the Subordinate Judge considered that the defendant No. 4 had not had a proper opportunity of meeting the plaintiff's allegation of sale and purchase. He remanded the case to the Munsif in order that he should take evidence and ascertain whether the defendant No. 4 was entitled to impeach the execution proceedings by reason of the fact that she was not aware of those proceedings. He grounded this order on this decision in Sheikh Murullah v. Sheikh Burullah 9 C.W.N. 972. Subsequently the Munsif found that defendant No. 4 had been entirely unaware of the former proceedings and accordingly was not bound by the sale. This decision was upheld on appeal by the Subordinate Judge.

3. The plaintiff appeals to this Court and on his behalf three grounds have been urged. The first is that defendant No. 4 was precluded by Section 244, Civil Procedure Code, from contesting the validity of the sale. We are unable, however, to accept this contention. It was held in the case of Durga Charan Agradani v. Karamat Khan 7 C.W.N. 607 following two certain cases that, the defendant in a suit is not debarred by Section 244 from raising a point in defence of his title even though he could have raised it but did not raise it in former execution proceeding to which he was a party. We have been invited to dissent from this decision, but it appears now to be well settled that the defendant can in a subsequent suit take a plea which the plaintiff would be debarred from raising by the provisions of Section 244, Civil Procedure Code.

4. The second ground taken is that the defendant No. 4 is precluded from questioning the sale by the provisions of Section 316.

5. In the case we have quoted and some of the cases which it followed, sale certificates had been issued, and it appears to us clear from those cases that if a defendant is not put out of Court by Section 244, neither is he affected by Section 316, Civil Procedure Code.

6. The third point taken is that the remand Order of the Subordinate Judge was not justified by law. In this contention, we think, there is considerable force. If, as a matter of fact, the plaintiff claimed this property as having been purchased by him in execution to which the defendant No. 4 was a party, and the 4th defendant never traversed or denied that allegation, it appears to us that the Subordinate Judge has gone far in setting up this denial for the defendant No. 4 which she had not seen fit to set up for herself; nor was his action strictly in accordance with Section 566, Civil Procedure Code. That section gives the Court power to frame issues for trial and refer them to the lower Court when the lower Court has omitted to determine an essential question of fact. But in this case the lower Court has certainly, rightly or wrongly, determined the question of fact which arose for determination. The appellate Court, however, could, of course, have called for further evidence under Section 568 and have dealt with that evidence when laid before it.

6. But we do not think that in the present case we ought, on the ground of more or less technical defects in the pleadings and the procedure of the lower Courts, to set aside the concurrent findings of both the Munsif and the Subordinate Judge. It has been said by high authority that pleadings in this country should not be too strictly construed. In this case we have a clear finding of fact that the defendant No. 4, whatever she might have said of omitted to say in her written statement, was as a matter of fact entirely ignorant of the execution proceedings in the former suit. We have also the finding of fact that the property in suit belonged to her and did not descend to her from Abbas Ali, and was not liable to sale for the recovery of Abbas Ali's debts. On findings of fact of this nature the decisions of the Courts below are evidently just, and we do not think that we should make them of no effect, on the technical grounds put forward by the appellant.